More and more Americans of all political stripes are concerned that the
Bush Administration has exceeded its legal authority by conducting
intelligence surveillance outside of what the law permits.

Anxiety over illegal surveillance is heightened by the prospect that an
ideologically subservient Congress may not insist on the primacy of
law, but will simply defer to the Administration, or authorize whatever
the White House wishes.

"The administration's stance that warrantless surveillance by the
National Security Agency targeting American citizens on American soil
is a legal exercise of the president's inherent powers as commander in
chief, even though it violates the clear language of the 1978 Foreign
Intelligence Surveillance Act" is a "monarchical doctrine," wrote
columnist George Will today.

"Monarchical" is a curse word in conservative thought, and for an
American conservative monarchy is a provocation to revolutionary
opposition.

"We cannot continue to claim we are a nation of laws and not of men if
our laws, and indeed even the Constitution of the United States itself,
may be summarily breached because of some determination of expediency
or because the President says, 'Trust me'," said Sen. Robert Byrd in a
Senate floor statement yesterday.

"I plead with the American public to tune in to what is happening in
this country. Please forget the political party with which you may
usually be associated and, instead, think about the right of due
process, the presumption of innocence, and the right to a private
life."

"This President, in my judgment, may have broken the law and most
certainly has violated the spirit of the Constitution and the public
trust," Sen. Byrd said.

In an unusual rebuke, the American Bar Association this week found it
necessary to urge President Bush to comply with the law.

"The American Bar Association calls upon the President to abide by the
limitations which the Constitution imposes on a president under our
system of checks and balances and respect the essential roles of the
Congress and the judicial branch in ensuring that our national security
is protected in a manner consistent with constitutional guarantees."

See the report of the American Bar Association Task Force on Domestic
Surveillance in the Fight Against Terrorism:

It states in section 1.3 that "The authority to classify information
originally may be exercised only by: (1) the President and, in the
performance of executive duties, the Vice President; (2) agency heads
and officials designated by the President in the Federal Register..."

Remarkably, the phrase "and, in the performance of executive duties, the
Vice President," which dramatically elevates the Vice President's
classification authority to that of the President, was added to the
executive order in 2003.

Prior to that, the Vice President only had classification authority
comparable to that of an agency head, having been delegated such
authority in a 1995 presidential order:

Declassification authority is defined in Section 6.1(l) of E.O. 13292.
It is granted to: "(1) the official who authorized the original
classification...; (2) the originator's current successor in function;
(3) a supervisory official of either; or (4) officials delegated
declassification authority in writing by the agency head or the senior
agency official."

So the Vice President has authority to declassify anything that he
himself classified. He also clearly has authority to declassify
anything generated in the Office of the Vice President, which he
supervises.

But is the Vice President, like the President, "a supervisory official"
with respect to other executive branch agencies such as the CIA? Did
the 2003 amendment to the executive order which elevated the Vice
President's classification authority also grant him declassification
authority comparable to the President's?

"The answer is not obvious," said one executive branch expert on
classification policy.

The Department of Energy expects to complete the declassification review
of 12.7 million pages of its 25 year old historically valuable
permanent records by December 31, 2006, the Department advised the
Information Security Oversight Office last month.

The January 2006 Department of Energy Declassification Plan was obtained
under the Freedom of Information Act by Michael Ravnitzky. A copy is
posted here (1.1 MB PDF file):

"If the Bush administration's interpretation of espionage law is upheld,
then everyone is breaking the law, all the time." That's the
conclusion that emerges from the Bush Administration's unprecedented
use of the Espionage Act to prosecute non-government employees for
mishandling classified information.